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A Voluntary Federation

[Part 2 of "The Secession Tradition in America," a paper presented at the 1995 Mises Institute conference, "Secession, State, and Economy." Click here for Part 1, "Secession: A Specifically American Principle".]

This Humean notion of Americanism that acknowledges the right of a self-governing people to secede is framed in the Declaration of Independence. The Declaration is primarily a document justifying secession, but it has been thoroughly corrupted by Lincoln’s reading of it and the ritualistic repetition and expansion of that reading. The Lincoln tradition reads the Declaration as affirming a metaphysical doctrine of individual rights (all men are created equal) and takes this to be the fundamental symbol of the American regime, trumping all other symbols, including the symbol of moral excellence internal to those inherited moral communities protected by the reserved powers of the states under the Tenth Amendment. Indeed, this tradition holds that the Declaration of Independence is superior to the Constitution itself, for being mere positive law, the Constitution can always be trumped by the “higher” metaphysical law of equality.

The Constitution of the United States was founded as a federative compact between the states, marking out the authority of a central government, having enumerated powers delegated to it by sovereign states which reserved for themselves the vast domain of unenumerated powers. By an act of philosophical alchemy, the Lincoln tradition has transmuted this essentially federative document into a consolidated nationalist regime having as its telos the instantiation of an abstract metaphysical proposition about equality. Such a proposition, in so far as it is taken seriously, must give rise to endless antinomic interpretations, and being metaphysical, these interpretations must stand in ultimate and implacable opposition. In this vision, the reserved powers of the states vanish, and the states themselves are transformed into resources for and administrative units of a nationalist political project “dedicated to the proposition that all men are created equal.” So well established has this inversion become that Mortimer Adler could write a book on the Constitution using for the title not the words of the Constitution, but those of the Lincolnian Declaration: “We Hold These Truths...”4

Lincoln’s vision of a consolidated nationalism in pursuit of an antinomic doctrine of equality had its roots in the French Revolution, which sought to unify the decentralized traditional order of France into a consolidated nationalism in pursuit of the rights of man. But Lincoln’s vision was also forward looking. By the 1830s, the forces of nationalism and industrialism were sweeping Europe, and had begun to have an impact on an industrial North all too eager to compete on the world stage with the empires of Europe. For this project, centralization and consolidation were necessary. Lincoln’s vision of consolidating the states into a nationalist regime was of a piece with that of Garibaldi in Italy, Bismarck in Germany, Lenin in Russia, and the general consolidating, industrializing, and imperializing forces on the move in the nineteenth and twentieth centuries.

But the Declaration was published before the forces of industrialism and nationalism had appeared. Rhetorically, the document is a lawyer’s brief designed to justify breaking the “bands” that had tied one people politically to another. And the people in question were not (as Story, Webster, and Lincoln would claim) the American people in the mass, but the peoples of the former colonies now declared to be separate and independent states but united in their resolve to resist coercion back into the British empire. Overall, the Declaration is an argument designed to justify the secession of the new self-proclaimed American states from the British state. The rights asserted are not the rights of individuals in a continental nationalist political society, but the corporate right of the “people” of the several states to govern themselves. And the equality mentioned is the equality of the people of the separate states, now grown to maturity, to take their place among the nations of the world; in a word, that the people of Virginia, Massachusetts, New York, etc., are equal to the people of Holland or France or Britain, and are to be recognized as such.

The Declaration, then, is a document justifying the territorial dismemberment of a modern state in the name of the moral right of a people to self-government. It is not primarily an argument for individual rights, but rather an argument for the corporate rights of distinct moral and political societies. This theme of corporate liberty shaped the first constitution Americans made for themselves, the Articles of Confederation, which styled itself a “league of friendship” between sovereign states. No mention was made of individual rights, as the Articles had no authority to enforce them. Individual rights, of course, were very important to Americans, but what those rights were and how they were to be protected were the prerogatives of the states and were clearly specified in their respective Constitutions.

The new Constitution, ratified in 1789, delegated enumerated powers to a central government whose laws would be supreme on matters of foreign treaties, defense, and regulation of foreign and interstate commerce. The Bill of Rights was added not as a massive grant of power to the central government to enable it to police supposed violations of individuals’ rights by the states (as it is corruptly interpreted today), but primarily to protect the moral and political societies of the states from the inevitable tendency of the central government to engross more power than had been granted to it. The capstone and meaning of the Bill of Rights is the Tenth Amendment, which affirms the sovereignty of the states in declaring the powers of the central government to be enumerated and “delegated.”

The Oxford English Dictionary identifies the first political meaning of “secession” in the secession of the southern states from the American Union. The Australian Constitution was formed with the American experience of federation and secession in mind. 5 And contemporary attempts to frame a theory of secession often return to the secession of the southern states as the primal scene in which the modern concept first appears and from which theorizing takes its bearings. But the term secession in this exclusively political and modern sense is used much earlier. Throughout the antebellum period secession was used, North and South, to describe a moral and legal action available to an American state. In this American speech, the modern concept of the right of a people to self-determination and the right of secession is theorized for the first time and publicly explored. This act, as we have seen, was spiritualized by Hume into what he called an American principle, namely the right of a people “to govern or misgovern themselves as they think proper.” Neither Hume nor the Americans, at this time, used the term secession in its exclusively political and modern sense. But by the early nineteenth century, Americans were describing the break with Britain as secession, and they began to raise the question of the conditions under which an American state could legally secede. But speech and theorizing about secession as the last moral and legal right available to an American state and the vibrant federal life it made possible abruptly ended with the defeat of the Confederacy and the triumph of a consolidated nationalist Union that began the adventure of empire building in competition with the European empires. During this period of “manifest destiny,” “the big stick,” and empire building, few in America, or Europe, would be interested in thinking about the self-determination of peoples or the right of secession.

Thought about secession and self-determination did not occur again until Woodrow Wilson brought the issue before the League of Nations. The results were not always happy, but the agenda stuck. It was revived after World War II in the United Nations, and is the primary form under which the self-determination of peoples is discussed in the world today. The concept of legitimate secession, first framed and explored by Americans, is very much alive and is throwing into question the modern consolidated Leviathan. United States government policy, however, unhappily has been on the side of the status quo. The government of the United States has resisted every secession movement in the world since World War II, and was among the last to recognize the seceding states of the Soviet Union.

One reason why Americans have difficulty even thinking about secession is that since 1865, they have been taught and have come to believe the triumphant Unionist theory of their own constitutional order. According to that theory, the break with England threw the colonists into a state of nature from which they spontaneously formed the political society of the American people in the aggregate. This body was sovereign and created a central government. This government, in turn, authorized the formation of thirteen state governments as administrative units through which the sovereign will could be best expressed. In this view, an American state never possessed the attributes of sovereignty and so could not legally secede from the Union any more than a county could legally secede from a state. The classic formulation of the nationalist theory was given by Justice Story in the 1830s; it was eloquently defended by Webster and was established in the world with a writ of fire and sword by Lincoln.6 Despite this distinguished pedigree, however, the theory is not only false, but spectacularly so.

The main error of the Unionist theory is the claim that the states were never sovereign. Each state, however, declared its sovereignty and independence from Britain on its own, and during the war each engaged in acts of sovereignty. After the war, each state was recognized by name as sovereign by the British government. These sovereign states formed the Articles of Confederation in which, again, the sovereignty of each was asserted and mutually recognized. Although the Articles of Confederation were supposed to be perpetual and could not be changed without unanimous consent, a number of states nonetheless sought to dissolve the Union. It was agreed (though not unanimously, since Rhode Island vetoed the Convention) that if nine states seceded and ratified the proposed constitution, a new Union would obtain between the nine seceding states. This was done, and by an act of secession the Union was dissolved leaving North Carolina, Virginia, Rhode Island, and New York to form a new union or to remain separate and independent states. Eventually, though reluctantly, all four entered. But Virginia, New York, and Rhode Island declared in their ordinances of ratification that, being sovereign states, they individually reserved the right to secede, and they asserted this right for the other states. This did not have to be asserted, since everyone knew that secession was an action available to an American state.7If, at the time of ratification, Lincoln’s theory had been stated that the states were not and had never been sovereign, and that once in the Union a state could not leave, there would have been no Union.

It has been said that the constitution of the Soviet Union was the first to recognize explicitly the legal right of secession in a modern state. Strictly speaking this is true. Article 17 of the Soviet Constitution declares that “the right freely to secede from the U.S.S.R. is reserved to every Union republic.” A right of secession was not written into the U.S. Constitution, but the authority of the Constitution consists solely in acts of ratification by sovereign states. In writing into their ordinances of ratification the right to withdraw those powers delegated to the central government, Virginia, New York, and Rhode Island may be said to have framed a right of secession in the constitutional compact. Marxist jurists from the former Soviet Union and the Warsaw Pact nations took the lead in the international forum in arguing for secession as a moral and legal right.8 Much of this was hypocrisy at the service of Soviet policy, but it was no more hypocritical than Lincoln’s Gettysburg Address that presents the conflict of 1861–65 as an earth-shaking war to make the world safe for self-government, when he was engaged in a total war aimed at the civilian population of the South, and designed to suppress their efforts at self-government. The irony is complete when we consider that the Soviets eventually did allow the secession of states (something that caused nervous tremors in the Bush administration). Perhaps over time, as sometimes happens, the Soviets were partially converted by their own hypocrisy.

From the very first, secession was conceived as the last check an American state had to an abuse of those enumerated powers that had been delegated out of its sovereignty to the central government. From its beginning until 1865, secession was invoked by every section of the Union. And the section that first and most often raised the threat of secession was not the South but New England. Secession was threatened over the Louisiana Purchase in 1803, the embargo of 1807–09, the War of 1812, and the Mexican War. New Englanders refused to send troops in the second war with England, and seriously considered forming a New England Confederacy at the Hartford Convention in 1815.9 From the 1830s until 1861, New England abolitionists argued strongly for secession of the northern states from the Union. The following resolutions were passed by the American Anti-Slavery Society: “Resolved, that secession from the United States Government is the duty of every Abolitionist....” And Resolved, “That the Abolitionists of this country should make it one of the primary objects of this agitation to dissolve the American Union.” 10

One of the early studies of the Constitution was A View of the Constitution, published in 1825 by William Rawle, a Federalist who was a leader of the Pennsylvania bar and had twice been offered the position of district attorney by George Washington, but had refused for personal reasons. Rawle raised the issue of whether a state could form a hereditary monarchy. He answered that since the people of a state are sovereign, they could, but the state would have to secede from the Union, since the Constitution guarantees to each state a republican form of government. He then laid out the formal conditions under which a state could unilaterally and legally secede from the Union.11 Rawle’s work on the Constitution was widely respected, and was used as a textbook at West Point from 1825–1840.

In 1840, Abel Upshur, a distinguished Virginia jurist and Secretary of State under Tyler, published A Brief Enquiry into the True Nature and Character of our Federal Government. This was an unanswerable criticism of Judge Joseph Story’s theory of federalism in Commentaries on the Constitution of the United States (1833). Story systematically inverted the received opinion that the Constitution is a compact between sovereign states creating a central government and delegating to it only enumerated powers. Story argued that sovereignty is vested in the American people in aggregate, that the states had never been sovereign, and that in fact it was the central government that had created the states. The inversion was breathtaking, and it was this aggressive nationalist theory that Webster (who began his career as a compact theorist and as a New England secessionist) would popularize by his eloquence, and that Lincoln would seek to establish by war. Upshur has no difficulty in demolishing it as a historical theory of the Constitution. He sees clearly where a centralized and consolidated regime in the vast territory of America, with its heterogeneous interests and cultures, must eventually lead; namely, to the destruction of the states as the only constitutional protection for those substantial moral communities, local attachments, and particularities in which virtue has its source and where alone it can be tested and lived out. In subverting Story’s inversion and by re-establishing the traditional theory that the Constitution is a compact between the states, Upshur had occasion to argue that an American state could legally secede from the Union.

Foreign writers who had studied the Constitution concluded that a state could secede from the compact. Tocqueville wrote:

The Union was formed by the voluntary agreement of the States; and in uniting together they have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the States chooses to withdraw from the compact, it would be difficult to disprove its right of doing so, and the Federal Government would have no means of maintaining its claims directly either by force or right. 12

Lord Brougham, in his magisterial, multi-volume study of constitutions published in 1849, considered the Constitution as a compact from which a state could secede:

There is not, as with us, a government only and its subjects to be regarded; but a number of Governments, of States having each a separate and substantive, and even independent existence originally thirteen, now six and twenty and each having a legislature of its own, with laws differing from those of the other States. It is plainly impossible to consider the Constitution which professes to govern this Union, this Federacy of States, as any thing other than a treaty.13

He accordingly refers to the Union as the “Great League.” And Dr. Mackay, another English scholar of the Constitution, writing in the mid-nineteenth century, observed that

The Federal Government exists on sufferance only. Any state may at any time constitutionally withdraw from the Union and thus virtually dissolve it. It was not certainly created with the idea that the states, or several of them, would desire a separation; but whenever they choose to do it, they have no obstacle in the Constitution.14

During the 1850s, this Great League was coming apart, and a movement arose among prominent national and state leaders in the mid-Atlantic states to form what was called a “Central Confederacy.” This new Union would be composed of such states as Virginia, Maryland, Delaware, New Jersey, New York, Ohio, Indiana, Pennsylvania, Kentucky, Tennessee, and Arkansas. This section constituted the conservative core of the Union, it was argued, and had interests different from the radicals of New England and the Gulf states. The formation of a Central Confederacy could prevent war and could serve as a rallying point around which the disaffected states of the deep South could one day return should they secede. 15 It is interesting that the proponents of the new Union showed little interest in including the New England states. Perhaps part of the reason was disgust over the long history of secession movements that had arisen in that region.

The mayor of New York, Fernando Wood, and others argued that if New York state seceded, the city should secede from the state and declare itself a free city. The mayor declared,

As a free city, with but nominal duty on imports, the local Government could be supported without taxation upon her people. Thus we could live free from taxes, and have cheap goods nearly duty free.16

Right up to the firing on Fort Sumter, many abolitionists in the North, having long argued for northern secession, were prepared to allow the South peacefully to secede. This was the position in New York of the Douglass Monthly,17 printed by Frederick Douglass, and of Horace Greeley, editor of the Republican New York Tribune, who declared 23 February 1861, after the Confederacy was formed,

We have repeatedly said ... that the great principle embodied by Jefferson in the Declaration of Independence, that governments derive their powers from the consent of the governed, is sound and just; and that if the slave States, the cotton States, or the gulf States only, choose to form an independent nation, They have a clear moral right to do so. Whenever it shall be clear that the great body of Southern people have become conclusively alienated from the Union, and anxious to escape from it, we will do our best to forward their views. 18

And John Quincy Adams, though a staunch unionist, declared in 1839, in a speech celebrating the Jubilee of the Constitution,

The indissoluble link of union between the people of the several states of this confederated nation is, after all, not in the right but in the heart. If the day should ever come (may Heaven avert it!) when the affections of the people of these States shall be alienated from each other; when the fraternal spirit shall give way to cold indifference, or collision of interests shall fester into hatred, the bands of political associations will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited states to part in friendship from each other, than to be held together by constraint. Then will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect Union by dissolving that which could no longer bind, and to leave the separated parts to be reunited by the law of political gravitation to the center.19

Four years after this speech, the former President would sign a document with other New England leaders declaring that annexation of Texas would mean the dissolution of the Union.

Pondering the secessionist movements in New England, Thomas Jefferson wrote in 1816 with characteristic liberality: “If any state in the Union will declare that it prefers separation ... to a continuance in union ... I have no hesitation in saying, let us separate.’“ 20 On the eve of the War Between the States, the majority of northerners appeared to have believed either that a state could legally secede or that one should acquiesce in peaceful de facto secession.

4. Mortimer Adler, We Hold These Truths: Understanding the Ideas and Ideals of the Constitution

7. The best defense of the thesis that the states were sovereign and that secession was a right available to an American state is to be found in Albert Taylor Bledsoe’s is Davis a Traitor, or Was Secession a Constitutional Right Previous to the War of 1861? (Charleston, S.C.: Fletcher and Fletcher, [1866] 1995). This was reprinted by Fletcher and Fletcher, Charleston, S.C., 1995. The first systematic refutation of Story’s thesis that the states were never sovereign was given by Abel Upshur, a distinguished Virginia jurist and Secretary of State under Tyler, in A Brief Enquiry into the True Nature and Character of our Federal Government, Being a Review of Judge Story’s Commentaries (Petersburg, Va.: E. and J.C. Ruffin, 1840). On the sovereignty of the states, see also C.H. Van Tyne, “Sovereignty in the American Revolution: An Historical Study,” American Historical Review 12 (April, 1907): 529–45.

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